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June 3 — State legislation to clarify that California should profit from its iconic images and names is headed to the state Senate.
The California State Assembly, 73-3, approved Assembly Bill 2880. Proponents said it would give California more control over state-created intellectual property, but opponents argue that it's a misguided attempt that fails to improve either IP protection or the public’s right to access.
“Although it has always been the intent of the legislature to ensure that state agencies can own, hold, and acquire intellectual property, this bill clarifies existing law by explicitly providing that a California public entity may own, license, and if deemed appropriate, register intellectual property,” according to a May 31 assembly floor analysis.
A.B. 2880, in order to maintain the public’s right to information, provides the state’s IP authority “only to the extent that it is not inconsistent with the California Public Records Act, the California Constitution, or the First Amendment of the United States Constitution,” the analysis said.
But Ernesto Falcon, legislative counsel for the Electronic Frontier Foundation, which plans to continue opposing the bill in the Senate, disagreed.
“There hasn’t been adequate recognition that the public’s free and unfettered access to public works is being eliminated,” Falcon told Bloomberg BNA June 2. “That’s just not being given its credit.”
The bill attempts to avoid a collision with the records act and IP law, “but I think there is no way to make copyright law and the CRA to be a happy family,” Falcon said. “The two are diametrically opposed. It’s openness versus restriction, and the state can’t choose both.”
The bill's amendments require a state entity to “reasonably consider good faith” before sending a takedown notice, specify statutory damages only when there is no evidence of fair use and waive statutory damages with a court fair use finding.
A state agency can’t deny a request for a record that is otherwise public on the grounds it’s protected by the Copyright Act, 17 U.S.C. Sec. 101 et seq. Requests can only be denied if facts favor nondisclosure in the public interest, or the record is exempt under the Public Records Act.
A public agency can issue a license that may restrict the holder from using the record for a commercial use “only if such use would result in economic harm to the public agency or to the public’s interest.”
Falcon said the changes don't resolve the issue of preventing a public body's use of copyright law to stifle criticism (City of Inglewood v. Teixeira, 2015 BL 272093, C.D. Cal., No. 2:15-cv-01815-MWF-MRW, 8/20/15 ) (43 Med.L.Rptr. W-4, (10/20/15)) (199 PTD, 10/15/15) (165 PTD, 8/26/15).
The Senate most likely will vote on bill after August if it passes out of policy committee as required by the July 1 deadline. The last day the California State Legislature can pass bills is Aug. 31.
The bill grew out of a federal dispute involving the former concessioner at Yosemite National Park and trademarked names at the California park ( DNC Parks & Resorts at Yosemite, Inc. v. United States , Fed. Cl., No 15-1034C, order granting leave to file 5/19/16 (99 PTD, 5/23/16).
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